Warren County v. Lamkin

• Citation: 93 Miss. 123,46 So. 497
• Court: United States State Supreme Court of Mississippi
• Decision Date: 25 May 1908
• Parties: WARREN COUNTY v. MILDRED HUNT LAMKIN

46 So. 497

93 Miss. 123

WARREN COUNTY v. MILDRED HUNT LAMKIN

Supreme Court of Mississippi

May 25, 1908

March 1908

FROM the circuit court of Warren county, HON. THOMAS G. BURCHETT Special Judge.

Warren county, appellant, was plaintiff in the court below; Mrs Lamkin, appellee, was defendant there. The suit was ejectment. From a judgment in defendant's favor the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

R. V Fletcher, attorney general, for appellant.

This is an appeal from the circuit court of Warren county. In 1872 the board of supervisors of Warren county undertook to lease for a term of ninety-nine years to one George McCarthy a certain parcel of land situated in the city of Vicksburg, which land was a part of a larger tract bought by the county for jail purposes. The lease executed by the president of the board to McCarthy recites that the consideration should be the sum of $ 862.50, the legal interest to be paid annually to said board of supervisors or their successors in office, with the privilege of said McCarthy "extinguishing the debt at any time by paying the principal and amount of interest due." This deed was made pursuant to an order of the board of supervisors, and it is conceded that, since the board had no authority to make such a lease, it is absolutely null and void. On the 23d day of January, 1873, McCarthy executed a lease to Chas. H. Smith of a part of this land for a cash consideration of $ 500 and the undertaking by Smith to pay his proportion of the interest required by the contract of lease. In November, 1877, the leasehold interest of Chas. H. Smith was sold to the Vicksburg Benevolent Society of Vicksburg, under a decree of the chancery court; the consideration being $ 750, payable in installments. In August, 1907, this corporation conveyed the land to Mrs. Lamkin, the appellee; the consideration being $ 900 in cash. The county brought ejectment on the theory that the lease to McCarthy was void, as being beyond the power of the board to make, and the defense is that the title of appellee has been perfected by adverse possession. The case was tried on an agreed state of facts, and one clause of the agreement provides "that if it be decided by the court that plaintiff has no right of action in the circuit court, but has a right of action in the chancery court, then the case is to be transferred to the chancery court; and this is true of the supreme court, if the case should reach that tribunal." The court below held that the county could recover neither the land nor the purchase money, since claims for both were barred by the statute of limitations. Since the claim for the purchase money was barred, it would be useless to transfer the cause to the chancery court for any purpose, and judgment final was therefore entered for defendant.

As stated, the case was tried on an agreed statement of facts, and the only recital in this statement as to adverse possession is as follows: "From May 8, 1892, George McCarthy and those deriving title through him, including Mrs. Lamkin, have been in open notorious possession of the said property, claiming the right to hold such possession during the whole term of the lease executed on that day to McCarthy." This statement by no means comes up to the standard necessary to show adverse possession. It does not show that the possession was actual, continued, exclusive, and hostile. The possession might be open and notorious, and yet lack some of the other essential elements. Hicks v. Steigleman, 49 Miss. 377; Dixon v. Cook, 47 Miss. 220; 13 Enc. Pl. & Pr., 286 et seq. But, assuming that the agreed statement of facts sufficiently shows adverse and continued holding, we come to the heart of this case.

It will be seen from the agreed statement that the county purchased this land in 1840 and erected a jail on the western part thereof. We may therefore safely assume that the land was purchased for jail purposes, and was held by the county from 1840 to 1872 as property set aside and appropriated for the use of the public, upon which to maintain county buildings--jail, courthouse, poorhouse, or whatever might be necessary for the use of the county. Doubtless this property was purchased under the authority conferred upon boards of police by the act of June 28, 1822. This act provides: "Every courthouse and jail, to be erected as aforesaid, shall be formed of such material, and be of such dimensions, as shall be directed by the justices of the county court, or a majority of them, in each county, who are hereby authorized to accept as a gift, or to purchase for the use of the county, so much ground, in the towns or other places where the courts may be ordered to sit, as they may judge convenient and necessary whereon to build all or any of the structures aforesaid, which purchase money shall be paid by the proper county, and laid in the county estimates." Hutch. Code, p. 708, c. 51, art. 4, § 1. It will thus be seen that the property was not acquired for the purpose of resale or disposition by lease, or in any other manner, but was held in trust by the county for the purposes for which it was acquired. The board of supervisors had no authority to lease it for ninety-nine years, or for any other term, nor was there authority anywhere, except perhaps in the state legislature, to dispose of it. The board may as well have undertaken to sell the courthouse, the jail, or any other public building of the county. This being the character of the property dedicated, as it were, to a public use, held in trust for the public, can the county's title be lost by prescription, however long continued?

It is said that from 1871 to 1880 the statute of limitations ran against the county by express provision of law, and that from 1880 to 1890 the common-law doctrine on the subject was in force, and that at common law statutes of limitation ran against counties, as held in Clements v. Anderson, 46 Miss. 581. This may all be safely conceded without shaking the force of the county's contention in this case. Clements v. Anderson, dealt with swamp and overflowed lands granted to the state for purposes of internal improvement, and by the state ordered to be disposed of to individuals for a certain consideration. This land was salable--held for sale. It was not held in trust for the public, in the sense that it could never be disposed of. When the opinion in the case holds that the statute of limitations runs against the county, it has reference to claims or rights which may be acquired or lost by prescription--matters to which ordinary statutes of limitation apply. If it can be shown that the land in the case at bar is controlled by a different rule, because of its character and the nature of its holding, an entirely different rule would be applied. It should be noted in passing that the doctrine of Clements v. Anderson is based upon the theory that the state is sovereign and that statutes of limitation do not apply to such. Would it not follow as a necessary corollary that property acquired by the sovereign, even through the medium of subordinate agency, and held and used to carry out the purposes and will of the sovereign, is by parity of reasoning likewise exempt from the statute's operation?

And so in Brown v. Issaquena Co., 54 Miss. 230, the case which furnishes the basis of the decision below, is susceptible of ready explanation. This was a suit over sixteenth-section school lands, which it was the policy of the law to dispose of by lease. The lands were useless for any purpose, except to furnish revenue to the schools by being leased. It was the privilege of any citizen to acquire them by complying with the statutory requirements. Occupancy by tenants was not foreign to the spirit and policy of the law, but entirely consistent therewith. The lease in this case was irregular, it is true--void, it may be admitted; but still some form of leasing was permissible, and the land was the subject of private ownership to the extent of the term. The same is true of the land involved in Jones v. Madison County, 72 Miss. 777, 18 South., 87; and upon identically the same principles were decided Madison Co. v. Powell, 71 Miss. 618, 15 South., 109, and other cases announcing the same doctrine.

Let us see how stand the authorities as to adverse possession in the case of lands such as are involved in the case at bar. So far as the operation of the statute is concerned there can exist no distinction between counties and municipalities. Many of the authorities cited herein refer to municipal corporations; but the doctrine is alike applicable to counties, or perhaps, since the county is but a quasi corporation--in truth a subdivision of the state, created for convenience in administering the law and consummating the purposes of governmen--it may be said that as counties the doctrine is all the stronger. In Vicksburg v. Marshall, 59 Miss. 563, it is said: "The streets in an incorporated town are held by the corporation in trust for the public, and an adverse possession thereof by an abutting owner cannot bar the right of the corporation to open it for public use. Dillon, Mun. Corp., § 675." This principle is reaffirmed in Withersppon v. Meridian, 69 Miss. 288, and is unquestionably the settled law of this state.

It will hardly be contended that the same rule would not apply to the public highways of a county, as well as the streets of a municipality. That they are to be classed together and made subject to the same rule is clear from the statement in 1 Am. & Eng. Ency. of Law (2d ed.) 878, where it is said: "The decisions of the courts as to whether title to highways streets, parks, or other public property can be acquired against a municipal or quasi...